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Disagreements arise between lawyers representing rail lawsuit | News, Sports, Jobs


The East Palestine Settlement Center opened last month at 191 E. Rebecca St. The center was created to help residents through the application process to receive compensation from the $600 million settlement between residents and Norfolk Southern to resolve a class action lawsuit filed in U.S. District Court in Youngstown. (Photo by Stephanie Elverd)

EASTERN PALESTINE — Objections to a $600 million agreement reached between attorneys representing residents of Eastern Palestine and Norfolk Southern to end a class-action lawsuit continue to mount.

More than 40 objections were filed in the Northern District Court in Youngstown opposing the agreement, the largest railroad settlement in U.S. history.

Court documents filed with the allegations include a long list of arguments against the settlements, including the residents’ failure to learn the exact amount of compensation before Norfolk Southern was released from liability for damages caused by last year’s train derailment and chemical spill, the release of outside contractors and government agencies from liability after a claim form was submitted and accepted, the allocation of compensation on a per-household basis rather than per person basis, insufficient anticipated compensation to make a difference, high anticipated legal costs that would reduce funds available to class members, and the lack of a health monitoring provision.

Unknown amounts

To find out what they will receive under the settlement, residents must complete and submit a claim form. Submitting it is considered acceptance of the settlement and releases Norfolk Southern from liability and the right to sue Norfolk Southern at a later date.

Settlement awards, within the first 20 miles of the derailment, will be made based on an allocation formula that considers criteria such as geographic proximity, household size, number of children in the household, relocation orders and length of displacement. Awards will be made only after all forms have been processed.

Third party exemption

The opt-in not only releases Norfolk Southern from liability for future damages, but also strips the resident of the right to hold Oxy Vinyls (owner of the vinyl chloride that was intentionally released), GATX Corporation (owner of the tank cars that contained the vinyl chloride), General American Marks Company (owner of the hopper car that failed hot), and Trinity Industries Leasing Company (owner of the other hopper car) harmless for any role they played in the derailment and venting and burning. On the other hand, the agreement still allows Norfolk Southern to seek damages from all three companies.

“Other “The “exempt parties” include Norfolk Southern contractors Arcadis and CTEH (environmental remediation companies), SPSI (another Nova Scotia contractor that acted as an intermediary between OxyVinyls and Incident Command when the decision was made to vent and burn), HEPACO (another remediation contractor), and local, federal, and state government agencies.

Household Component

The awards will be distributed to households – not individuals. While household size is part of the weighting for awards, only one award will be made to each address within a 20-mile radius. There is a personal injury element that allows for a personal injury award to be made to any resident living within the first 10 miles and maintains a link between the health effects and the derailment.

Estimated rewards

The claim form reveals how much each class member household is likely to receive in property damage compensation from the settlement. According to the form, households located 0-2 miles from the derailment can expect to receive up to $70,000. The award decreases with distance from ground zero — 2-4 miles ($45,000), 4-7 miles ($30,000), 7-10 miles ($15,000), 10-15 miles (about $500), and 15-20 miles ($250). Meanwhile, personal injury claims were for $10,000 or less. The form states the possibility of a higher payout for “extraordinary claims” for both property and personal injury damages, meaning some awards may be higher. Any awards previously received from Norfolk Southern or another agency — such as relocation assistance and inconvenience fees — will be deducted from the award.

Legal fees

Attorneys stand to pocket nearly $200 million of the $600 million. Under the preliminary agreement “Class attorneys agree to seek no more than 27% of total monetary damages recovered” AND “costs and expenses up to 3% of the fund.” If that percentage were awarded, legal costs would total $180 million—$162 million in legal fees and $18 million in other expenses.

Medical monitoring

While class members continue to oppose the settlement, arguing that it contains no requirement for medical monitoring, a ruling in an unrelated train derailment case makes that clause inapplicable.

The Northern District Court of Ohio (the same district court that heard the Norfolk Southern case) previously ruled, “that any increased risk of cancer or other disease was too small for the court to order a longer period of medical monitoring” In Hirsch vs. CSX, the 2007 CSX train derailment and chemical fire in Painesville. The U.S. District Court for the Sixth Circuit later upheld that ruling. Because of the previous opinion, Judge Benita Pearson, presiding over the Norfolk Southern class action, had little or no choice but to dismiss the medical monitoring claim.

Residents have until August 22 to file an objection to the agreement. Filing an objection does not affect a class member’s eligibility to participate in the settlement or affect any award they may receive.



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